SOPA and PIPA are acronyms that generated intense global
interest in late 2011 and early 2012.[1] We offer material below to assist readers to
locate original documents and help understand the recent history of these
proposed US laws.

The
bill was not put to the vote and was shelved in late January 2012.[3] The US President had declined to support it[4] and
raised the prospect of a veto, and members of Congress and Senate had also
indicated loss of support.[5]

According
to Rep. Smith it will be reintroduced in February 2012.[6] (Music
industry organisation IFPI’s Digital
Music Report 2012 envisages further governmental support.[7] An alternative, Online Protection and Enforcement of
Digital Trade (OPEN) Act,[8] was
introduced with bipartisan support on 18 January, the day of online
protests.)

US
investors may face difficulty dealing with sites identified as ‘notorious
foreign infringers’ by a regulator acting on suggestions from rights
holders and public, even where the alleged infringement may be a marginal
aspect of their operation, as with social networking sites.[11]

PIPA and SOPA are both online anti-piracy
bills, similar in approach but with key differences in certain provisions:

PIPA
does not have a provision requiring search engines to remove links to
infringing foreign web sites.

PIPA
provisions require greater court intervention when a web site is accused
of US copyright infringement.

PIPA
does not penalise copyright holders for misrepresenting the alleged
infringing activities of the accused website.

In
SOPA there is a provision (section 103(b)(6)) which penalises copyright
holders who ‘knowingly materially misrepresent’ the infringement by ‘making
them liable for damages incurred by the misrepresentation’.[14] This could potentially act as a restraint on making unwarranted assertions
that an item is infringing; its absence from PIPA means that others,
including ISPs and content posters, would be more likely to bear the costs
of unsubstantiated assertions by copyright holders under that Act.

SOPA
is often considered to be the ‘more extreme’ version as it defines a
‘foreign infringing site’ as any site that is ‘committing or facilitating’
copyright infringement, whereas PIPA limits sites to those with ‘no
significant use other than’ copyright infringement.[15]

The bills were supported by the US movie and music
industries, Chamber of Commerce, and parts of other US creator and
rights-holding sectors, but triggered controversy especially among online
businesses, users and technical communities.[16] Issues raised in
opposition include:

The
bills would enable internet censorship and threaten free speech by
providing the U.S government and copyright holders with unprecedented
powers to shut down websites, including those in other jurisdictions, that
are alleged to be infringing U.S copyright laws.[17]

The
broad powers would allow websites that weren’t knowingly hosting pirated
content – particularly those based on ‘user-generated content’ such as
Facebook, Twitter or Wikipedia – to be exposed to court orders against
them.[18]

The
‘vigilante’ aspect of SOPA/PIPA has been strongly criticised as internet
service providers (ISPs) are allowed to voluntarily block access ‘in good
faith’ if they have ‘credible evidence’.

Those
acting in this way would receive legal immunity (from litigation against
them by, for instance, others asserting their interests have been
adversely affected by this ‘good faith’ action) even if the alleged
infringements cannot be proven, hence potentially allowing an abuse of
power, and pre-empting or usurping the role of courts in determining
whether infringements of the law have occurred.

Opposition
from technical experts to DNS and DNSSEC impacts prompted proponents to
agree to withdraw DNS-poisoning proposals
from both bills in December.[19]

Forbes magazine
carried an analysis of the impact of these objections, the involvement of major
leading technology companies including Google, Yahoo, Facebook, Twitter,
LinkedIn and Ebay[20] and online
community sites like Reddit, Tumblr, Mozilla, Wikipedia, Facebook and Twitter,
the central role of ‘engineers’, and the process by which they undermined
support for the Bills.[21]

SOPA
and PIPA are intended to target ‘rogue’ websites, but collateral damage may arise
and potentially affect legitimate sites due to the broad scope of the bills,
and provisions which could in some situations shield misuse from legal
consequences.

Potential
examples include:

Social
media websites that share photos, videos, music and written content could be
forced to shut down – Tumblr, Twitter, Flickr, Facebook, Youtube

Blog
syndication sites could be shut down due to a
single violation from an entry or comment that contained a copyright
infringement.[22]

A
substantial portion of the top 500 web sites used by Australians are US based. Suspension of access to them
would directly affect Australian consumers who use them.[23]

Australian
online business may be unable to access the US market if internet service
providers are able to block infringing web sites. This would be of
significant relevance for businesses that operate on American e-commerce
website such as Etsy, DeviantArt and Ebay.[24]

If
either SOPA or PIPA was passed, there could potentially be pressure on
Australia to propose and pass similar legislation, due to the provisions
of instruments like the Australia-US
Free Trade Agreement 2004.[25] The Attorney-General's Department has denied this is likely,[26] though
they have shown limited long term interest or capacity to resist pressure
from MPAA for favourable amendments to local law.

As
both bills extend to foreign sites (web sites not based in US), all content
on any website used or created by an Australian consumer would need to be actively
monitored to ensure it would not be hosting infringed US content.
Australian websites that are based in the US or where the internet domain
names are registered in the US could fall under the proposed law’s
jurisdiction.[27]

If
SOPA were passed, there may be a potential loss of income if a web site or
online web service relies on advertising income. And as the owner of the web site would in
effect be responsible for the content on the advertiser’s site, if the
advertiser’s site contained US copyright infringements the owner of the site
may similarly face court orders for ‘facilitating’ copyright
infringements.’[28]

[1] Eg
discussion of potential impact on the underlying principle of interconnectivity
in Mark Lemley, David Levine and David Post, ‘Don't Break the Internet,’ Stanford Law Review Online, Vol. 64,
p.34, December 2011, posted January 3, 2012. Available at SSRN: http://ssrn.com/abstract=1978989

[4] See Administration’s
response by Victoria Espinel, Intellectual Property Enforcement Coordinator at
Office of Management and Budget, Aneesh Chopra, U.S. Chief Technology Officer,
and Howard Schmidt, Special Assistant to the President and Cybersecurity
Coordinator for National Security Staff, ‘Combating Online Piracy while
Protecting an Open and Innovative Internet: Official White House Response to
Stop the E-PARASITE Act and 1 other petition’, We The People [online petitioning service on Whitehouse.gov],
undated (14 January 2012?) at: https://wwws.whitehouse.gov/petition-tool/response/combating-online-piracy-while-protecting-open-and-innovative-internet